Medical Malpractice
The Apgar Score, devised by Dr. Virginia Apgar in 1953, is a quick method for assessing the clinical status of a newborn.
Five features are scored at one minute and five minutes after birth. The features are respiratory effort, heart rate, color, muscle tone and motor reactions. The most critical features are the child’s attempts to breathe and the infant’s heart rate. In general, if these two are satisfactory, the other features are as well.
Each feature is scored from zero to two, making a total of 10 possible points. A low total score of zero to three, which will occur if the baby does not breathe or if the heart rate is too slow, means the child needs urgent resuscitation. A score of seven to 10 indicates a well baby. A score from four to six is a cause for concern, but obviously it is not as serious as a lower score.
Apgar scores are a valuable tool in birth injury lawsuits, providing insight into the newborn’s health immediately after birth and helping to establish whether medical negligence contributed to the child’s injuries. Although they are not standalone proof, Apgar scores, when used in conjunction with other medical evidence, can significantly influence the outcome of birth injury cases by shedding light on the timing, severity, and potential preventability of the injuries.
APGAR Score Explained
The APGAR score is a quick assessment tool used to evaluate the health of newborns immediately after birth. It helps determine if a newborn requires immediate medical care. The score is calculated based on five criteria, each of which is assigned a score from 0 to 2, with a maximum possible score of 10. The five criteria are:
| Category | Score 0 | Score 1 | Score 2 |
|---|---|---|---|
| Appearance (Skin Color) | Pale or blue all over | Pink body with blue extremities | Completely pink |
| Pulse (Heart Rate) | Absent | Less than 100 bpm | 100 bpm or more |
| Grimace Response (Reflexes) | No response | Grimace or feeble cry | Crying vigorously or pulls away |
| Activity (Muscle Tone) | Limp or floppy | Some flexion of arms/legs | Active motion |
| Respiration (Breathing) | Absent | Weak, irregular, or slow | Good, strong cry |
- 7–10: Normal – newborn generally healthy, may need routine care.
- 4–6: Fair – may require oxygen, monitoring, or minor intervention.
- 0–3: Critical – immediate resuscitation and intensive care required.
The APGAR score is typically assessed at one minute and again at five minutes after birth. It provides a quick and effective way for healthcare providers to evaluate a newborn’s condition and determine any necessary interventions.
Apgar Scores and Medical Malpractice Cases
The Apgar score is a reliable indicator of acute infant health at birth and has been demonstrated to be correlated with birth injuries and deaths. APGAR scores are sometimes used as an element of proof to common malpractice claims against obstetricians: oxygen deprivation (hypoxia) and neurological damage among infants.
A low Apgar score (generally 3 or below) can suggest that the newborn was experiencing significant distress, possibly due to birth asphyxia or other complications during delivery. This can be critical in establishing that the baby suffered from hypoxia (low oxygen levels), which may have led to conditions like hypoxic-ischemic encephalopathy or other brain injuries.
In a lawsuit, these low scores can support a plaintiff’s argument that the medical team failed to adequately monitor the baby’s oxygen levels, respond to signs of fetal distress, or take timely action to perform an emergency C-section.
What Defense Lawyers Do with APGARs
Defense lawyers representing the doctors and hospitals’ position on the importance of APGAR scores depend on the case. Often these lawyers will argue that an APGAR score cannot establish hypoxia as the cause of prenatal injury. They argue that studies have found that an infant with an Apgar score of 0-3 at 5 minutes, whose 10-minute Apgar score improves to 4 or higher, has a 99% chance of not having cerebral palsy at seven years of age. (Conversely, 75% of children with cerebral palsy had normal Apgar scores at birth.)
But commonly, you see the defense lawyers claiming that a good Apgar score means that a brain injury could not cause the baby’s diagnosis of hypoxia or cerebral palsy during childbirth. So if the child’s Apgar score at five minutes is six or above, the defense lawyer will try to find experts to say that the child’s brain injury could not have been caused by an OB’s mistake during labor and delivery.
This argument often falls apart quickly. First, bias comes into play in a lot of these. Health care providers have a bias towards a higher score. Interobserver reliability is low, even at five minutes. Sometimes this bias is impossible to discern. In other cases, a review of the raw scoring will show that the scoring does not even correlate with the objective numbers.
Also, there are often factors that can artificially inflate a baby’s five-minute Apgar score. The nature and extent of neonatal resuscitation can play a big role. Assessment of a child’s respiratory effort — a big factor in the score — is compromised when breathing assistance is given.
APGAR Score Settlements and Verdicts
Below are summaries of birth injury cases in which there was a discussion of the baby’s APGAR score in the facts relevant to either the plaintiff’s malpractice claims or the defense theory asserted by the hospital or doctors.
When used offensively by the plaintiff, a low APGAR score is usually cited as evidence that the baby suffered trauma or oxygen loss during the delivery process. By contrast, when the defense is citing to APGAR scores is usually for the exact opposite purpose — that is to argue that the baby’s injuries must have occurred AFTER delivery. Defense lawyers often use these scores to point out alternative explanations for low scores, such as congenital conditions or unavoidable complications.
- $4,333,000 Settlement (New York 2024): The infant allegedly experienced respiratory distress, suffered a grade 3 intraventricular hemorrhage and hydrocephalus, and underwent multiple procedures, including extracorporeal membrane oxygenation (ECMO) and surgery to install a ventriculoperitoneal shunt. The defense in this case asserted that the baby was born with normal APGAR scores, implying that the injury must have occurred after delivery.
- $995,000 Settlement (Pennsylvania 2023): a male infant, reportedly suffered hypoxic ischemic encephalopathy with complications including metabolic acidosis, impaired brain function, and neonatal depression during his delivery and birth at defendant Albert Einstein Medical Center. The plaintiffs contended the defendants failed to abandon the pursuit of a vaginal delivery after a 74-hour stage one of labor with Subrina experiencing maternal tachycardia and severe preeclampsia and failed to perform a non-emergent C-section as their own documented plan dictated, leading to D.R. eventually being born in a near-death state with low Apgar scores and requiring vigorous resuscitation efforts
- $2,100,000 Settlement (California 2021): Baby was delivered at 28 weeks’ gestational age by cesarean section and weighed 2 pounds, 5 ounces. Despite his prematurity, the plaintiff’s APGAR scores were at 9 and 9 at 1 and 5 minutes, respectively. The plaintiff had issues with respiratory distress, apnea due to prematurity, and other medical issues, but was discharged in good health at 5 pounds. Nine days later, he suffered a cardiac arrest and died, and the cause was hypoxic-ischaemic encephalopathy (HIE).
Contact Us About Birth Injury Malpractice
Low Apgar scores can result from mistakes made during the birthing process by the obstetrician or nurses. Often these errors cause oxygen deprivation that can cause permanent injuries that require a lifetime of care. If you suspect that your child may have had poor care during the childbirth process, call our birth injury lawyers at 800-553-8082 or get a free online consultation.